Baby names and the law

Yesterday my sister had a baby. Big congratulations to her, her partner and the little one. Prior to the birth, I was chatting with my sister about possible baby names. "Are there any illegal baby names?" she asked me. I thought about it and then said "I don't know". I decided to conduct a little investigation...

I can find no legislation which directly prohibits certain names or types of name. A spokesman for the General Register Office has, however, previously stated that whilst there are no restrictions on the names that parents can give their children, "an official" could refuse to register a name, in an exceptional case, where the name could be deemed offensive. I do not, as at the time of writing, know what form the legislative basis for this proviso takes nor who and how the phrase "deemed offensive" is interpreted. What I do know, however, is that the General Register Office has, in recent years, been happy to register names such as "Superman", "Gandalf", "Gazza" and "Arsenal". It is, therefore, hardly surprising that celebrity parents have been permitted to give their children names such as "Harper Seven" and "Fifi Trixibelle"...

Is the rest of the world as liberal when it comes to the legality of baby names? It would seem not.

Countries such as Denmark, Spain, Germany and Argentina all publish lists of acceptable baby names from which the parents must select. The German authorities, for example, will not allow a baby to be called "Hitler" and have also refused specific requests that children be allowed to be named "Osama Bin Laden", "Stompie", "Woodstock" and "Grammophon".

The Department of Internal Affairs in New Zealand have rejected names such as "Christ" and "Lucifer" whilst also prohibiting parents from naming their children with symbols and numbers. In 2007, the BBC reported that a New Zealand couple had lost a legal battle to name their child "4Real" and so settled on "Superman" instead. A number of other sources I perused revealed that Judges in New Zealand have previously refused permission to name twins "Fish" and "Chips" although did permit the names "Number 16 Bus Shelter" and "Violence". Although my absolute favourite refusal by the New Zealand judiciary has to be for the request that a child be named "Talula Does The Hula From Hawaii."

Over in Malaysia, it seems that the Government had to ban the name "Chow Tow" which, when translated into English, means "Smelly Head", whilst a woman in Norway was apparently jailed for 2 days for giving her child an unapproved name.

Finally, a Judge in the United States refused to allow a man to change his name to "God" so the man settled on "I Am Who I Am".

So one thing is for sure. There is certainly no consistency when it comes to which names are permitted and which are not. Should parents be able to call their children anything they want? If not, who should make that decision and what criteria should be applied before a decision is reached?

Never work with children or animals- although if you do, it might just pay off.

I noticed a Facebook page doing the rounds yesterday which read 'RIP Pippin the Dog'. Some of you may remember the children's TV show called 'Come Outside' which featured the eccentric Lynda Baron (from Open All Hours) and her dog Pippin. Of course, anyone who watched the show would know that the same dog did not play the role of Pippin throughout the series. A dog called 'Mr Higgins', which was, I believe, a descendant of Pippin, also played the role.  Anyway I digress.

The death (whether it be of Pippin, Mr Higgins, or some other dog, or perhaps just a mistake) reminded me of a case I dealt with very early on in my career. I was representing a middle aged lady from North London who owned a dog which was not too dissimilar from Pippin. She was a lady of good character who had been charged with an offence under the Control of Dogs Order 1992. Yes, I'd never heard of it either. The offence was as follows:

"The owner of a dog or the person in charge of a dog who, without lawful authority or excuse, proof of which shall lie on him, causes or permits the dog to be in a highway or in a place of public resort not wearing a collar as prescribed in article 2(1) above shall be guilty of an offence against the Animal Health Act 1981."

The lady in questions dog was a puppy, albeit a boisterous one. It had, so the account went, escaped from her garden whereby she chased it up the street. She couldn't catch it. The dog was picked up by a dog warden and taken to the shelter. Because the dog was microchipped, the warden was able to locate the owner who came to collect the dog (she also had to pay a fee to cover the 'expenses' that the shelter had occurred). A week or so later she received a letter from the local council to say that she was being prosecuted under the aforementioned provision. She pleaded not guilty to the charge. Her defence was twofold: (i) the fact that the dog had escaped was beyond her control and therefore amounted to an 'excuse', and (ii) the dog did, in fact, wear a collar but it was able to take it off itself.

At my request, the dog was brought to court. I took it into the waiting room and watched as it bounced around and, sure enough, took its collar off the moment it was put on. Would it do it at trial?

The trial commenced and the point came where I 'called' the dog. This excited much amusement within the courtroom, with the Chairwoman remarking that if the dog 'did its business' I would be the one that had to pick it up. The collar was placed on the dog and the dog was let loose. True to form, the dog removed the collar within seconds. I thought I was on to something good here.

There was then an argument as to the standard of proof. The Crown said that the legal burden was on the Defence. I made representations that we simply bore an evidential burden which the Crown had to rebut beyond reasonable doubt. The Bench accepted my proposition.

However, did I win the case in the Magistrates' Court? No. The lady was convicted and given a Conditional Discharge. We appealed that decision to the Crown Court where the conviction was overturned and the Judge made a number of remarks about the costs involved in prosecuting this case.

So all's well that ends well.

I was pretty surprised that this lady had to go through two trials all because her dog had escaped. I also feel that the legislation is pretty outdated. I can understand why it is important that dogs can be identified through having a collar and tag but let us not forget that this lady had had her dog microchipped as most responsible dog owners now do. It seems to me that this was somewhat of a pointless (and costly) prosecution of a nice lady who, on the face of it, was a responsible dog owner.

Anyhow, now you can see the link between Pippin the Dog, Mr Higgins and a prosecution under the Control of Dogs Order 1992!

A surprise call

I'm back in the UK at the moment on holiday. Whilst here, I've taken the time to visit the parents; the consequences of not doing so are definitely worth avoiding.

Yesterday the phone rings and my mother asks if I can answer it. I pick up the phone to be greeted as follows (I will alter the names of all the participants):

"This is PC Smith. Can I speak with Mr Jones?"

"He's not here" I reply. "Can I take a message or get him to call you when he gets in?"

"He is supposed to be at X Magistrates' Court today. He was a witness to a traffic incident."

I looked at my watch. It was 11:30am.

"What time was he warned to attend?" I asked.

The officer hesitated slightly and then said "The trial was due to start at 10am but the prosecutor needs Mr Jones before the trial can start".

"Yes, but what time was he warned to attend?" I pressed.

A slightly longer pause before the officer continued: "We believe that the witness care unit called him about 2 months ago to tell him of the date and time."

And so the picture began to materialise. No-one knew whether he had, in fact, been warned to attend and, even if he had, it was "believed" that that occurred about 2 months ago.

"I will try and reach him" I said "and will call you to let you know. What number can I reach you on?"

"Dial 101 and ask to be put through to PC Smith at X Magistrates' Court."

"Ok" I say. "Goodbye".

I try to reach Mr Jones through several avenues. His mobile phone is going straight to voicemail and the few family members who I thought may have known of his whereabouts, didn't.

So I call 101 and ask to be put through to PC Smith at X Magistrates' Court.

"Does anyone know the number for X Magistrates' Court?" I hear the operator hollow in the background. It seems that nobody does and, somewhat incredibly, I am told that they don't know the number and suggest I look it up on the internet. Charming.

So I look up the number and call the Court. I'm put on hold for about 7 minutes whilst the officer is located. The officer then proceeds to tell me that I should not have called the Court directly and that I should have, as she had asked, gone through 101. As you can imagine, I am thus far wholly unimpressed with how this little exchange has been going.

"I did call 101- they didn't know the number. They were not prepared to find it for me and instead helpfully suggested that I look it up on the internet."

"Oh" replies the officer. "I am sorry about that".

Anyhow, I explain that I can't locate Mr Jones and that I do not know where he is. The officer then proceeds to tell me that his evidence is crucial and that the trial can't continue without him. Quite what she wants me to do about this I don't know.

"Can you continue to try to reach him and call me in 20 minutes to let me know if you have managed to get through?"

"Yes" said I. "How shall I reach you?"

"Dial 101" she says "and give them this extension...".

So I try and reach Mr Jones, fail to do so, call 101 and give them the extension. I come through to a different officer who says that PC Smith is in Court. He takes a message from me and says that he will get her to call me. She never does.

As of yet, I don't know what happened in Court. I'm tempted to call to find out.

I did, however, manage to speak with Mr Jones in the afternoon. He tells me that he had never been given the date of the court hearing and, had he known of it, he would certainly have attended. I have no reason to believe that he is lying about this and from the way the officer spoke on the phone, I strongly suspect that he hadn't been warned to attend. Furthermore, I didn't find the police particularly helpful. When I am giving up my time to assist them, the least they could do is put me through to the Court and not have a go when I choose to phone the Court directly. Also, quite why they were only phoning at 11:30am when the trial was due to start at 10am, I don't know.

If I find out what happened at Court, I'll be sure to add it by way of postscript!

Financial Penalties- are they worth the hassle?

I was in a civil court today where the Applicant, as he was known in this particular case, was appealing a decision of a lower tribunal. The court dismissed his appeal but, in doing so, noted that the three months he had been given to pay his USD100,000 financial penalty was a tad unrealistic. The Court varied the order to allow the Applicant to pay the penalty in ten monthly instalments of USD10,000 which he was happy about. It made me think about all those defendants who are fined (particularly in the Magistrates' Court) in the sum of (for example) £100 and ask to pay in instalments of £5 a week which is, invariably, to be deducted from their benefits. The phrase 'robbing Peter to pay Paul' comes to mind because, putting to one side compensation and victim surcharge payments, the money is simply going from one government department to another. However, when one considers the cost of administering the system- from the imposition of the fine, to its periodic collection, to its enforcement, the amount the government actually gets back must be a fraction of that which it handed out. I'd love to know the exact figures but I suspect they are difficult to analyse. It certainly wouldn't come as a surprise to learn that the associated administration costs actually exceed the amount of money coming in.

There is, however, a seedier side to the imposition and collection of fines. Two cases spring to mind. I was once sitting in a London Magistrates' Court waiting for my case to get called on and, whilst waiting, was watching a number of cases that involved unrepresented defendants. The first was a lady who pleaded guilty to possession of cannabis. She was fined £125, ordered to pay £85 in costs and the £15 victim surcharge was imposed. She was in receipt of Jobseeker's Allowance. "The full amount is due now" the legal advisor said. "I can't pay that much now" the lady replied. "Can it be deducted from my benefits?" "How much money do you have on you?" asked the Chair. I can't remember how much it was, but it amounted, so the lady said, to her bus fair. "Well you can pay that in to Court and you'll have to walk home or get a lift". The lady protested that she didn't know anybody and that it was far too far to walk home. She was then told that if she refused to pay her fare into Court she would be taken down into the cells. She burst into tears. Still the Chair and the Legal Advisor persisted that this £2.80 or whatever it was should be handed over. The tears got worse and enough was enough. "Please excuse me, but as an officer of the Court please could I address you?" I said. The Chair permitted it. I proceeded, politely but forcefully, to explain that what was going on here was pretty disgraceful. The lady was in tears, the Court was trying to seize £2.80 and was having no regard for how this lady was going to get home. Perhaps, I thought to myself, they would like her to commit fare evasion or theft? The Bench relented and agreed to take the money from the lady's benefits. The Legal Advisor looked most dissatisfied but there we are.

The second occasion involved an actual client. I was in a Magistrates' Court in Essex. My client had been convicted of assaulting a police officer. She was fined £75 but ordered to pay full prosecution costs (which were about £600) and, of course, the £15 victim surcharge. The Bench had taken umbrage with her because the nature of the assault was a spit (something many Magistrates seem to despise with a passion) and they felt that the evidence was overwhelming (i.e. the officer's word against hers) and so penalised her accordingly. This was despite the fact that she was a single mother living on benefits (namely Child Benefit, Housing Benefit and Tax Credits). She certainly was in no position to pay just short of £700 there and then but that didn't stop the Bench trying to get it. Their opening gambit was to (somewhat unrealistically) threaten her with prison. I managed to bat that one away without too much of a struggle. However, they then wanted to see her purse (she having said she had no money in it). To the client's credit, she duly provided it. There was nothing in it. Not content with that, the Bench made the point that they could have her searched by the dock officer. I confess that my patience was slowly deteriorating. I interjected again. After a bit of toing and froing they relented. However, they were not going to give up that easily. "Go to the bank" said the Chair "and get a receipt to show how much is in your account." There was then a rather unfortunate exchange between the client and the Chair but she duly went to the bank and produced a receipt. She had about £85 in the bank. "Well, we'll take that today" said the Chair. "You may have forgotten" I said politely "that Mrs X has two small children that she has to provide for". They seemingly had not forgotten but as seems to happen all too often the Chair came out with the line "well she will have to find somebody else who can either pay the fine or pay for the children- a friend or family member perhaps." I felt like screaming "HOW IS IT A FRIEND OR FAMILY MEMBER'S PROBLEM?". I didn't of course but it really gets to me when Magistrates expect the money to come from someone else. Why on earth should some poor person who has nothing to do with the case have to fork out the money? Anyway, this whole sorry episode went on for about half a day (won't somebody please think of the children cost to the public purse). Eventually, they settled on taking £5 (from a man in the public gallery who had no connection with the case but who was no doubt appalled at what was going on!) and agreed to deduct the remainder from her benefits.

Sadly these little incidents are not uncommon and it is usually people who are unrepresented who bear the brunt of them. So in short I have two general issues as regards the imposition of fines- (i) do the associated administrative costs in administering and collecting them outweigh the amounts involved? and (ii) please can we have a little bit more humanity when it comes to time to pay and not behave like some sort of extortion racket?

Answers on a postcard please.

Twitter- Chambers v DPP and Tom Daley

So, it has been nearly 5 months since my last post. The reason? I have fled the jurisdiction. Temporarily at least. I decided a change of scenery was in order so packed my wig and gown and headed off to the Middle East. I'm not sure how long I will stay out here but I have no doubt that I will return to the UK at some point.
The realisation that I had not updated my blog in such a long time only dawned on me yesterday amid the furore surrounding the tweets sent to Olympic Diver Tom Daley by some 17 year old boy who clearly had nothing better to do with his time than to hurl insults to someone who has clearly achieved more in his youth than this particular individual has or will ever do.

However, let us rewind a few days where Twitter was once again under the scrutiny of the lawyers following the Lord Chief Justice's Judgment in the case of Chambers v DPP [2012] EWHC 2157. In that case, the Crown Prosecution Service considered it prudent to charge Mr Chambers with an offence under s.127 of the the Communications Act 2003 after he had tweeted the following message to his girlfriend:

"Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"

Remarkably, not only was Mr Chambers charged, he was also convicted by the Magistrates' Court (a District Judge no less) and his appeal to the Crown Court was unsuccessful. Thankfully, the Lord Chief Justice, sitting in the Divisional Court, quashed the conviction. Quite apart from making the obvious observations that the tweet in question was (a) as far as Mr Chambers was concerned clearly meant as 'a joke' to his other half , (b) was not in any event sent directly to the airport, and (c) once brought to the attention of airport security had been deemed as 'non-credible', the LCJ observed at para 30 that:

"...After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace."

The Judgment was undoubtedly a victory not only for Mr Chambers, but also for common sense. Earlier in the Judgment, the LCJ observed, at paragraph 28, that:

"The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation."

Fast forward a couple of days where, three days into the Olympics, Tom Daley and Peter Waterfield come fourth in the synchronised diving. Tom tweets as follows:

"After giving it my all...you get idiot's sending me this...RT @Rileyy_69: @TomDaley1994 you let your dad down i hope you know that."

Tom's dad having died of cancer, this comment was undoubtedly intended to be hurtful. Unsurprisingly, Tom's fans (as well as those who were just appalled by what had been said) rallied to his defence and a Twitter campaign that @Rileyy_69 be banned from Twitter ensued. Undeterred, @Rileyy_69 continued with abuse such as "hope your crying now you should be why can't you even produce for your country your just a diver anyway a over hyped prick" and "sit you ass back down tommy and don't get on a diving board again my little brother could do better absolute waste of space."

However, once Tom's fans rallied together and a Twitter war was waged, @Rileyy_69 changed his tune:

"I'm really sorry :("

"Please I don't want to be hated I'm just sorry you didn't win I was rooting for you pal to do britain all proud just so upset."

The next day, the BBC reports that:

"A 17-year-old boy was arrested at a guest house in the Weymouth area on suspicion of malicious communications.

Dorset Police said they acted after being contacted by a member of the public at about 22:30 BST on Monday.

A spokesman was unable to confirm whether the arrest was specifically over the tweets to Daley or subsequent Twitter conversations with other users."

In the meantime, various people (including lawyers) were expressing their views on Twitter and through writing blogs about what had happened. A number of lawyers expressed the view that they were 'surprised' how the attitudes of people change in so short a space of time, i.e, how the public had only days earlier welcomed the Judgment of the LCJ in Chambers but were now horrified by what had been said by @Rileyy_69.

To be honest, lawyers should know better. The two cases are hardly comparable. Yes, they both involved the medium of Twitter but the similarities end there. In Chambers, the 'non-credible' threat had been aimed at Mr Chambers' partner, not the airport and was, on any sensible reading, a joke. @Rileyy_69 on the other hand chose to fling abuse at Tom directly. There was nothing funny about the content. There was no joke. He was simply being abusive. I've read two legal blogs so far which suggest that these comments were likely to be no more than a 17 year old venting frustration at the fact that Tom missed out on securing an olympic medal and who clearly regretted his actions as demonstrated by his public apology. That explanation does not, I'm afraid, stand up to scrutiny. First, a lot of people may have been upset that Tom didn't secure a medal but they certainly did not decide to tell him so in such a manner through the public medium of Twitter. Second, if one cared to look at @Rileyy_69's other, unrelated tweets, (as I did) it would have been immediately obvious that this particular Twitter user thinks nothing of using Twitter as a means to hurl insults and threaten violence to others. In fact the comments made to Tom were mild compared to other things @Rileyy_69 had said. Third, the idea that the apology amounted to anything more than an attempt to avoid getting into trouble is laughable. This is because (a) @Rileyy_69 had an established history of using vile and offensive language and (b) the apology only came after people had rallied in support of Tom and were trying to get @Rileyy_69 banned.

Whether this whole affair results in a court appearance nobody yet knows. Certainly if Mr Chambers warranted being charged, this particular Twitter user does. However, the police and the CPS will no doubt have the Lord Chief Justice's Judgment firm in their minds and will wish to carefully reflect upon it before they rush to make a charging decision.

Anyhow, it will be interesting to see what happens.

I will also make more of an effort to update my blog whilst I'm out here!

The End of the Week

It's been quite a long week and I must confess that I am relieved that the weekend is here. On Wednesday I had a couple of PCMHs at the Crown Court followed by a conference with a client who is charged with a rather serious drugs offence that is coming up for trial in June. Nothing out of the ordinary happened. On Thursday, however, I had a private driving trial to defend in the Magistrates' Court. The allegation was failing to comply with a traffic sign. The traffic sign in question is such that, even if convicted, the Defendant's licence is safe from any form of endorsement. The trial should have been easy and problem free. However, whilst at court, an issue arose which resulted in the trial being vacated and, would you believe, the need for me to be called as a defence witness. I best not go into the particulars but suffice it to say I'm quite looking forward to my witness debut. I'll update you once the trial has been and gone. Anyway, the weekend is upon us and so I shall allow you all to enjoy it!

Radio Silence and Contempt of Court

So, my apologies for not updating my blog recently but I've been involved in a trial at the Crown Court which only came to an end on Thursday. I'm far from convinced that the jury came to the right conclusion but I'll say no more about that. What is slightly more entertaining is what happened on Friday when I was asked to cover a trial at the Magistrates' Court. A straightforward Common Assault where the complainant and the defendant had at one time been in a relationship together. She alleged that the defendant had punched her; he denied it. Everyone turns up at 10am ready for a trial but in fact the court had listed the case for 2pm but hadn't thought to tell anyone. Anyhow, I'm sitting in the advocates' room when I notice some paramedics in the public area. I look out the door to see what's happening. It transpires that the complainant in my case was drunk and that the witness service had called an ambulance as they were concerned about her. She, however, had other ideas and refused to go with them. She did, however, leave the court building saying she would return later. True to her word, she returned at about 2:30pm having, it appeared, consumed more alcohol in the interim. There was a fracas at the front desk involving security, the complainant and some other people but eventually the officer in the case, with the assistance of the prosecutor, managed to usher her into the witness room. Now at this point you're probably thinking 'well surely the Crown are not going to call this witness?' A rational thought, but you'd have thought wrong. The trial is called on and in the complainant stumbles. She can barely take the oath and she leans on the witness box before slumping into a seat. The prosecutor carries on as if nothing out of the ordinary has happened and begins to ask questions. She hasn't got a clue. She can't remember the date or what happened. With some prompting she manages to utter the words 'he walloped me and I walloped him back but only he got arrested'. When the prosecutor attempts to further question her, she begins to swear and shout and starts to leave the witness box- heading for the door. The Chairman of the Bench tries to calm the situation but to no avail. Her choice of words has now become quite choice and the Chairman has had enough. Contemplating contempt proceedings, he orders the jailer to come up from the cells and take her away- which he does whilst trying to keep a smile from his face as her verbal abuse, now directed at him, continues. I then head off to the advocates' room to see if I can find a solicitor to advise her regarding the contemplated contempt proceedings. Meanwhile, the prosecutor is on the phone to the Borough Prosecutor trying to ascertain what to do. Unbelievably, you might think, the prosecution crack on with the trial and recall her to finish her evidence once the court has dealt with the issue of contempt. My cross examination only sought to set her off again so I kept it as short as practically possible. Finally she left the court-room never to return. Or so we all had hoped. I call the defendant to give evidence which he does. During the course of it, however, the complainant makes a return visit, as indeed does a 'random' member of the public who also joins in with a chorus of abuse of his own. Both are escorted from the building by the officer in the case. The defendant is acquitted and all's well that ends well. The Chairman, who had coped very well with all that had happened, thanked Counsel and remarked that at one point he thought he and his colleagues were being set up- one assumes in some sort of Beadle's About come Punk'd spectacular. I have to say, the very same thought had occurred to me. However, as there was no sign of the ghost of Jeremy Beadle or the boyish charm of Ashton Kutcher, I can only assume that Friday was nothing more than one of those days...